3. Testimonial Evidence

Waiver<br>

• Express waiver – may only be done by the patient
• Implied waiver
• By failing to object
• When the patient testifies
• A testator procures an attending doctor to subscribe his will as an attesting witness
• Disclosure of the privileged information either made or acquiesced by the privilege holder before trial
• Where the patient examines the physician as to matters disclosed in a consultation
• Also check Rule 28 on Physical and Mental Examination [Rules on Civil Procedure] [Herrera]

Non-Applicability of Disqualification:

This rule may be waived.

Objections to the competency of a husband or wife to testify in a criminal prosecution against the other may be waived as in the case of the other witnesses generally. It is also true that objection to the spouse's competency must be made when he or she is first offered as witness, and that the incompetency may be waived by the failure of the accused to make timely objection to the admission of the spouse's testimony, although knowing of such incompetency, and the testimony admitted, especially if the accused has assented to the admission, either expressly or impliedly. (People v. Francisco, G.R. No. L-568, 1947)

Where the wife is a co-defendant in a suit charging fraud against the spouses, the wife could not be compelled to testify as an adverse party witness concerning her participation in the alleged fraud without violating [Sec. 23] of Rule 130. (Lezama v. Rodriguez, G.R. No. L-25643, 1968)

Whether her testimony will turn out to be adverse or beneficial to her own interest, the inevitable result would be to pit her against her husband. The interests of husband and wife in this case are necessarily interrelated.

Where the marital and domestic relations are so strained that there is no more harmony to be preserved nor peace and tranquility which may be disturbed, the reason based upon such harmony and tranquility fails. In such a case, identity of interests disappears and the consequent danger of perjury based on that identity is non-existent.

Thus, there is no longer any reason to apply the Marital Disqualification Rule. (Alvarez v. Ramirez, G.R. No. 143349, 2005)

Reason for exclusion of hearsay evidence

Hearsay evidence is excluded because the party against whom it is presented is deprived of his right and opportunity to cross-examine the persons to whom the statements or writings are attributed. (Regalado 2008 ed.)

The reason for the exclusion of hearsay evidence is that the party against whom the hearsay testimony is presented is deprived of the right or opportunity to cross-examine the person to whom the statements are attributed. Moreover, the court is without opportunity to test the credibility of hearsay statements by observing the demeanor of the person who made them. (People of the Philippines v. Victor P. Padit, G.R. No. 202978, 2016)

Dying declarations

Dying declaration. - The declaration of a dying person, made under the consciousness of an impending death, may be received in any case wherein his or her death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death. (Rule 130, Sec. 38)

A statement made by a dying person referring to the material facts which concern the cause and circumstances of his death and which is uttered under a fixed belief that death is impending and is certain to follow immediately, or in a very short time, without an opportunity of retraction and in the absence of all hopes of recovery.